The Employment Tribunal did not ‘misdirect’ itself when it dismissed two interpreters’ claims for racial discrimination against the Ministry of Justice, the Court of Appeal has ruled.

Lord Justice Underhill restored a 2013 Employment Tribunal decision to dismiss proceedings brought by Dr Windle, of Czech origin, and Mr Arada, of Algerian origin, against the ministry for racial discrimination contrary to part 5 of the Equality Act 2010, which prohibits discrimination against ‘employees’.

The Court of Appeal was asked to consider whether the Employment Appeal Tribunal was right to find that the Employment Tribunal had ‘misdirected itself’ by treating the absence of an ‘umbrella’ contract as a relevant factor in the assessment of the claimants’ employment status.

The judgment states that although Windle and Arada had done ‘a good deal of work’ for HM Courts and Tribunals Service, they did so only on a case-by-case basis.

HMCTS was under no obligation to offer them work; nor were they obliged to accept it when offered. The interpreters were paid simply for work done, with no provision for holiday, sick pay, or pension. They considered themselves self-employed and were treated as such for tax purposes.

Windle and Arada claimed that ‘in various respects’ their terms were less generous than those accorded to British Sign Language interpreters. The judgment states the background to the claims was HM Courts & Tribunals’ decision in 2011 to outsource the provision of interpreter services under a ‘framework agreement’ with Applied Language Services, but that it ‘does not affect the legal issue’.

The ministry ‘took a preliminary point’ that the claimants were not its employees within the meaning of the act. However the interpreters argued that they were under a contract ‘personally to do work’.

The Employment Appeal Tribunal ruled in 2014 that the tribunal had ‘misdirected’ itself and remitted the case to the Employment Tribunal.

Allowing the ministry’s appeal against the EAT decision, Underhill said it seemed to him ‘a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense.

’Of course it will not always do so, nor did the [tribunal] so suggest. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.’

Lord Justice Lindblom and Lord Justice Jackson agreed with Underhill’s decision to allow the appeal.

Underhill also praised barrister Mark Humphreys for representing the interpreters pro bono, through the Free Representation Unit, at the Employment Appeal Tribunal and in the Court of Appeal. The claimants were unrepresented at the Employment Tribunal.

Underhill said: ‘The court is most grateful to him for doing so, as I am sure the claimants are also.’